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This Blog addresses liability for Physical Therapy employers relating to COVID-19.

During these uncertain times of COVID-19, employers, especially those in health care, must be mindful of liabilities and obligations to employees and to others as the result of employees. Most importantly, health care employers, including physical therapists, should take the steps outlined by various government agencies to reduce further spread of COVID-19.

Legal Liabilities for Physical Therapy Employers

Workers Compensation Liability for Employers

Generally speaking, infectious diseases are considered nonindustrial and therefore not compensable, unless the disease can be distinctly and uniquely tied to a specific occupation—such as black lung in coal miners.[1] However, if a worker is able to prove they contracted the virus through exposure specific to their work that created a special or increased risk of contracting the virus that was materially greater than the exposure common to the general public, the employer may face liability.[2]

Unlike the common flu, the Occupational Safety and Health Administration (OSHA) requires any incidents of employees contracting coronavirus be reported, and subject to the same rules and failure-to-record fines as other workplace injuries and illnesses.[3]

The most challenging thing facing these workers’ compensation claims will be proving the illness arose out of or in the course of employment; i.e. that the risk of contracting the disease by virtue of employment is materially greater than the risk to the general public.[4] There is no formula for determining causation in these cases, and therefore cases determining whether there is a special exposure exception are “necessarily dependent on [their] particular facts.”[5]

The burden of proof for an applicant to prove their workers’ compensation claim in normal circumstances is to establish reasonable probability of industrial causation by a preponderance of the evidence.[6] On top of that, employees making COVID-19 claims will have to show additional special employment exposure in excess of that experienced by the general population.[7]

To minimize the risk of further COVID-19 exposure at the workplace, OSHA has prepared Guidance on Preparing Workplaces for COVID-19. According to these Guidelines, physical therapists and their staff are what OSHA consider to be medium or high exposure risk workers, depending on the exact conditions they work in.[8]

Liability to Third Parties

Businesses should also consider liability to third parties, such as patients, which may not be limited in damages like workers’ compensation benefits are. For example, a receptionist at a physical therapy clinic may only be entitled to workers’ compensation, but theoretically, the clients they infect could seek greater damages.

At this time, there is no case law or legislation specifically addressing civil claims for the negligent spreading of COVID-19. The best procedures for employers is to follow the guidelines provided by OSHA, the CDC, the EEOC, and other State and Federal agencies that have provided guidance regarding COVID-19 to prevent further infection. This includes increased hygiene procedures, asking employees to get tested or stay at home if necessary, and increasing screening procedures for patients. Organizations should also educate employees in advance of any workplace infection about modes of transmission and symptoms by sharing specific public health guidelines, such as those mentioned above and, more broadly, directing staff to the official sources of information upon which the organization will rely.

Reporting Obligations for Employers

Health and Safety Code section 120250 requires all physicians, nurses, owners, managers, employees, etc. who have visited a place where someone is ill with any infectious, contagious, or communicable disease to promptly report that fact to a health officer, together with the name of the person, if known, the place that individual is confined, if applicable, and the nature of the disease. Health and Safety Code section 120175 imposes upon that health officer the obligation to “take such measures as may be necessary to prevent the spread of the disease or occurrence of additional cases.” The obligations under Section 3125 have been ruled to apply to hospital administrations.[9]

Keep in mind that privacy restrictions mandated by the Health Insurance Portability and Accountability Act (HIPAA) still apply. Employers are exempt and may disclose protected health information of their employees “as authorized by and to the extent necessary to comply with laws relating to workers’ compensation or similar programs, established by law, that provide benefits for work related injuries.”[10]

The disclosure of patient information should be done pursuant to HIPAA regulations as normal; however, the Office of Civil Rights (OCR) at the U.S. Department of Health and Human Services (HHS) announced on March 17, 2020, that it will begin exercising its enforcement discretion and will waive potential penalties for HIPAA violations against health care providers that serve patients through everyday communication technologies during the COVID-19 public health emergency. This means that regulations will be less strictly enforced if healthcare providers practice telehealth with their patients.[11]

Insurance Against Business Risks

Another thing business owners should do during the current pandemic is review their insurance policies. Business Interruption insurance protects against losses sustained due to periods of suspended operation due to property damage. Contamination of tangible property may constitute property damage for insurance purposes. For example, contamination of HVAC systems has been held to constitute such property damage. You may even have Pollution Legal Liability (PLL) insurance, which would also provide business interruption insurance if the insured property is contaminated by a COVID-19 infection. However, you should be aware of the limitations of this type of coverage. Many insurers have added specific exclusions for bacterial or viral infections to their coverage. Further, insurers can argue that their standard pollution exclusions apply to bar coverage.

Healthcare providers should also reevaluate their existing general liability insurance policies. These policies cover liability for bodily injury and property damage, and primary Commercial General Liability policies will usually provide a legal defense against such claims. These policies can also protect you from third party claims, as mentioned above.

Finally, professionals may face claims based on failure to meet a duty of care that may be covered by Professional Liability insurance or Errors and Omissions insurance, and some companies or their management may face claims for financial losses resulting from mismanagement of their response to the pandemic, which may be covered by Directors and Officers policies. It is therefore key for any business owner to understand the full scope of their insurance policies in high risk situations such as these.

Testing Your Employees

The EEOC has confirmed that advising workers to go home is permissible and not considered disability-related (in ways that could trigger Americans with Disabilities Act protections) if the symptoms present are akin to those of the COVID-19 coronavirus or seasonal flu.[12] Employers are also permitted to ask employees to seek medical attention and get tested for COVID-19.[13] The same EEOC statement finds that measuring employees’ body temperatures is permissible given the current circumstances.[14] While the ADA normally limits the types of inquiries an employer can make into an employee’s medical status, the EEOC considers taking an employee’s temperature to be a “medical examination” under the ADA.[15]

Employers should be aware, however, that if an employee were to become infected by the testing process, or develops an adverse reaction such as a related illness, disability, or death, it will be highly likely that the injury would be deemed industrial and therefore a valid workers’ compensation claim because the testing was “an intervening human agency or instrumentality of the employment.”[16]

What to Expect Next

It is important to keep in mind that the COVID-19 epidemic is a global phenomenon that is evolving every day. Therefore, the best thing an employer can do is to continually check in with state and federal agencies to keep up to date on the requirements for employers to ensure continued compliance. For further assistance, please contact Simas & Associates at 888.999.0008 or info@simasgovlaw.com.

 

[1] In San Francisco v. IAC, the commission found that “to justify an award there must be an affirmative showing of a case within the statute and it must affirmatively appear that there exists a reasonable probability that the employee contracted the disease because of his employment.” (San Francisco v. Industrial Acc. Com., 183 Cal. 273, 282 [191 P.26].)

[2] Bethlehem Steel Company v. IAC (George) (1943) 21 Cal.2d 742, 744.

[3] 8 CCR Section 342(a) requires every employer to immediately report to an OSHA district office any serious injury, illness, or death of an employee in a place of employment or in connection with employment. “Serious injury or illness” was recently redefined in Labor Code section 6302 as follows:

“(h) Serious injury or illness means any injury or illness occurring in a place of employment or in connection with any employment which requires inpatient hospitalization for a period in excess of 24 hours for other than medical observation or in which an employee suffers a loss of any member of the body or suffers any serious degree of permanent disfigurement, but does not include any injury or illness or death caused by the commission of a Penal Code violation, except the violation of Section 385 of the Penal Code, or an accident on a public street or highway.”

[4] Ibid.

[5] Pacific Employers Ins. Co. v. Industrial Acc. Com. *Ehrhardt) (1942) 19 Cal.2d 622, 70 Cal.Comp.Cases 71.

[6] Labor Code § 3202.5.

[7] See Bethlehem Steel Company v. IAC, supra.

[8] Guidance on Preparing Workplaces for COVID-10, pg. 19-20.

[9] Derrick v. Ontario Community Hospital (1975) 47 Cal.App.3d 145, 152 [120 Cal.Rptr. 566].

[10] HIPAA Section 164.512(I).

[11] https://www.hhs.gov/about/news/2020/03/17/ocr-announces-notification-of-enforcement-discretion-for-telehealth-remote-communications-during-the-covid-19.html

[12] What You Should Know About the ADA, the Rehabilitation Act, and COVID-19, https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm.

[13] Ibid.

[14] Ibid.

[15] Ibid.

[16] Latourette v. WCAB (1998) 17 Cal. 4th 644, 654; See also Maher v WCAB (1983) 33 Cal. 3d 729, 48 Cal.Comp.Cases 326; Roberts v. U.S.O. Camp Shows, Inc. (1949) 91 Cal.App.2d 884, 885.